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Burrows v. Herbert

June 1, 2009

LEROY BURROWS, PETITIONER,
v.
VICTOR HERBERT, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION AND ORDER

INTRODUCTION

Petitioner Leroy Burrows ("Burrows") filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. §2254 challenging his conviction in Monroe County Court on one count of rape in the first degree and one count of rape in the third degree. For the reasons set forth below, Burrow's §2254 petition is dismissed.

BACKGROUND

I. Factual Background

On August 1, 1997, Burrows was charged under Indictment Number 500/97 with one count of first degree rape for the April 7, 1997 rape of Barbara Terry ("Terry"). Under the same indictment, he was also charged with one count of first degree rape of Mahogany Houston ("Houston") between June 24, 1997 and June 25, 1997. Because the victims were less than 17 years of age and Burrows was older than 21 years of age, he was also charged with two counts of rape in the third degree (statutory rape).

The Terry Case*fn1

On April 7, 1997 at around 8:00 p.m., Terry left her aunt's house where she was living at the time to go to the store to get some beer with Burrows and her friend Jason Singleton ("Singleton").*fn2 T. 253-54. Burrows was driving the car, a blue Honda, while Terry was in the back seat and Singleton was in the front. Id. Upon arriving at the store, Singleton went inside, leaving Terry alone in the car with Burrows. T. 257-258. Rather than waiting for Singleton to return, Burrows drove away. Id. Terry later testified that she began screaming and crying when she realized that something was wrong and Burrows told her to shut up. T. 259. Further, Terry testified that Burrows stopped the car at an unknown location, grabbed her by the throat and again told her to shut up. T.260. Burrows drove a while longer before stopping in a parking lot behind a Ramada Inn near the airport. T. 262. Thereafter, Burrows climbed into the back seat and forcibly removed Terry's clothes. T. 263. She tried to resist but Burrows hit her in the chest and held her down with his elbows. Id. After removing her pants, Burrows allegedly had intercourse with her against her will. T. 265. When Burrows was finished, Terry hit him in the mouth, jumped out of the front window and flagged down a passing motorist. T. 266. The motorist, an elderly lady, brought Terry home. Id. On April 15, 1997, eight days after the incident, Terry informed her mother what happened and her mother reported to the police that Terry had been raped by Burrows.*fn3

The Houston Case

On June 24, 1997, two months after Burrows' release from jail, he raped Houston who was then 14 years old. At approximately 9:00 p.m. on the day in question, Houston was outside a friend's house on Scio Street in Rochester when Burrows pulled up in a green Cadillac with his cousin David Hill ("Hill") and another friend previously mentioned, named Singleton. T. 352. Although Hill owned the car, Burrows was driving it. T. 388, T.416.*fn4 Houston got in the parked car and talked with Burrows for about 15 to 20 minutes. T. 353. At about 9:15 p.m. Houston's cousin, Pam Lawhorn ("Lawhorn") and her boyfriend, pulled up alongside the Cadillac, got out near the window and told Houston to get out of the car. T. 390. As Houston attempted to step out of the car, Burrows drove off in a hurry with Houston still inside. Id. Lawhorn and her boyfriend tried to follow the green Cadillac for a few blocks, but Burrows managed to lose them. T. 392. Burrows then dropped off Singleton at his house on Second Street, and from there Burrows (or Hill, who may have replaced Burrows in the driver's seat when they dropped off Singleton) drove to 80 Norton Street, where Hill's aunt lived. T. 396. Burrows parked in the back of the driveway of 80 Norton Street. T. 356. Hill exited the car and walked across the street to his girl friend's house. T. 357.

Alone in the car with Houston, Burrows climbed into the back seat and asked Houston whether she wanted to have sexual intercourse. Id. Houston answered no and said that she had to leave. Id. However, Burrows would not take no for an answer and he began choking her and insisted that Houston was going to have sexual intercourse with him anyway. T. 357-58. While choking Houston with one hand, Burrows removed her pants with the other and then forced her to have sexual intercourse. T. 359. During the course of the rape, Hill returned to the car and observed that Burrows was having intercourse with Houston. T. 420. Hill later testified that Houston was crying and yelling to him for help. T. 422. Further, Hill testified that Houston told Burrows to get off of her. Id. Burrows ignored Houston's pleas and told Hill to go away. Id. Hill walked back to his girl friend's house but returned to the car a few minutes later and continued to observe Burrows attacking Houston. Id. Although not true, Hill told Burrows that his aunt was coming because he could think of no other way to get Burrows off of Houston, who was yelling for help. T. 423. The ploy worked and as Burrows got off of Houston, Hill entered the driver's seat and assisted Houston in finding her clothes. Id. According to Hill, Burrows expressed anger at him for intervening on behalf of Houston. T. 424.

Hill drove Burrows home and then dropped off Houston on Alphonse Street, where she encountered her cousin Lawhorn. T. 425, T. 428.

When Lawhorn asked why Houston was crying, she explained that Burrows had raped her. T. 473. Thereafter, Houston called her mother and told her what had occurred and her mother contacted the police. Houston was taken by the police to Rochester General Hospital where an examination confirmed that sexual activity took place. T. 483-84. Based on information provided by Houston, the police went to Hill's apartment and searched his green Cadillac. In the back seat of the car, the police found a hair ribbon and a hair brush, both of which belonged to Houston. T. 456-57.*fn5

The Trial and Verdict

Burrows was tried before a jury in Monroe County Court (Egan, J.) on January 5 to January 8, 1998. Charged with two counts of Rape in the First Degree and two counts of Rape in the Third Degree, Burrows moved to sever counts 1 and 2, which related to Terry from counts 3 and 4, which related to Houston. The court denied the severance motion.*fn6 The jury convicted Burrows of the Houston rape (counts 3 and 4), but acquitted him of the rape charge involving Terry (counts 1 and 2). Burrows was sentenced on March 23, 1998 to 25 years to life for Rape in the First Degree and 2 to 4 years for Rape in the Third Degree. Both sentences were set to run concurrently.

II. Procedural History

Burrows appealed his conviction to the Appellate Division of the Fourth Department ("Appellate Division") which unanimously affirmed his conviction in a decision entered March 21, 2001. See People v. Burrows, 280 A.D.2d 132 (4th Dept. 2001). The Appellate Division held that Burrows was not entitled to an ex parte in camera hearing on his motion for severance. The Court of Appeals denied leave to appeal on May 15, 2001. On June 11, 2002, Burrows filed the instant federal habeas corpus petition pursuant to 28 U.S.C. §2254 raising the following claims: (1) error in denying his motion to sever; (2) insufficiency of the evidence with regard to Count Three (forcible compulsion claim) and (3) prosecutorial misconduct during closing arguments.*fn7

DISCUSSION

I. Standard of ...


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